Great Barrier Reef Marine Park Amendment Regulations 2006 (No. 1)1 Select Legislative Instrument 2006 No. 132
I, PROFESSOR MARIE BASHIR, AC, CVO, Administrator of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Great Barrier Reef Marine Park Act 1975. Dated 14 June 2006 MARIE BASHIR Administrator By Her Excellency’s Command IAN CAMPBELL Minister for the Environment and Heritage
1              Name of Regulations                 These Regulations are the Great Barrier Reef Marine Park Amendment Regulations 2006 (No. 1). 2              Commencement                 These Regulations commence on the day after they are registered. 3              Amendment of Great Barrier Reef Marine Park Regulations 1983                 Schedule 1 amends the Great Barrier Reef Marine Park Regulations 1983.

Schedule 1        Amendments (regulation 3)    [1]           Regulation 28 substitute
28            Photography, filming or sound recording — definition for Zoning Plan                 In the Zoning Plan: photography, filming or sound recording means the recording of images or sounds in a way that has, or is likely to have, negligible impact on the Marine Park. [2]           After subregulation 74 (6) insert          (7)   In considering an application for permission to enter or use a zone or designated area for 1 or more of the following purposes:                 (a)    photography, filming or sound recording involving cetaceans;                (b)    research involving cetaceans;                 (c)    a tourist program that consists, in whole or in part, of a swimming-with-whales activity or a whale watching activity; the Authority must have regard, in addition to the matters specified in subregulation (5), to the matters in subregulation (8).          (8)   In considering an application to which subregulation (7) applies, the Authority must also have regard to the following:                 (a)    the need to ensure that the entry or use will not adversely affect a cetacean or the conservation status of a species of cetacean or a population of a species of cetacean;                (b)    the need to ensure that the entry or use is not inconsistent with a recovery plan or wildlife conservation plan that is in force under the Environment Protection and Biodiversity Conservation Act 1999 for a species of cetacean;                 (c)    whether the applicant is likely to take all reasonable steps to minimise interference with cetaceans.          (9)   In this regulation, swimming-with-whales activity and whale watching activity have the meaning given in Part 4A. [3]           After Part 4 insert
Part 4A               Interacting with cetaceans
117A       Definitions for Part 4A                 In this Part: calf, for a cetacean, means an animal not more than half the length of an adult of the species. caution zone, for a cetacean, means an area around the cetacean with a radius of: (a)    for a dolphin — 150 metres; and (b)    for a whale — 300 metres. cetacean means an animal of the Suborder Mysticeti or Odontoceti of the Order Cetacea. dolphin means a member of the family Delphinidae or the family Phocoenidae. prohibited vessel means any of the following:                 (a)    a jet ski;                (b)    a parasail;                 (c)    a hovercraft;                (d)    a hydrofoil;                 (e)    a wing-in-ground-effect craft;                 (f)    a motorised diving aid (for example, a motorised underwater scooter). swimming-with-whales activity means an activity for the purpose of enabling tourists to swim, snorkel or scuba dive with cetaceans, or to observe cetaceans while in the water with them, including:                 (a)    using an aircraft or vessel to find cetaceans for that purpose; and                (b)    placing tourists in the water for that purpose. whale means a cetacean other than a dolphin. whale watching activity means an activity (other than a swimming-with-whales activity) conducted for the purpose of enabling tourists to observe cetaceans, including using a vessel or aircraft to find cetaceans for that purpose.
117B      Application of Part 4A          (1)   A provision of this Part applies to a person in the Marine Park.          (2)   The provision applies subject to any exemption that the person may have under regulation 117K.
117C      Offences in this Part                 A person does not contravene a provision of this Part only because the person is undertaking:                 (a)    an activity mentioned in paragraph 231 (c), (d), (e) or (f) of the Environment Protection and Biodiversity Conservation Act 1999; or                (b)    an activity mentioned in paragraph 231 (a), (b) or (h) of the Environment Protection and Biodiversity Conservation Act 1999 and the activity could not be undertaken at a time or in a way to avoid contravening the provision.
117D      Prohibited vessel          (1)   This regulation applies to a person who is operating a prohibited vessel in the Marine Park.          (2)   A prohibited vessel must not approach closer than 300 metres to a cetacean.          (3)   A prohibited vessel must move, at a constant slow speed, away from a cetacean that is approaching so that the vessel remains at least 300 metres away from the cetacean.          (4)   A prohibited vessel must not be used for a whale watching activity or a swimming-with-whales activity.          (5)   If a prohibited vessel is operated in a way that contravenes subregulation (2), (3) or (4), the person operating the vessel is guilty of an offence. Penalty:   50 penalty units.          (6)   An offence under subregulation (5) is an offence of strict liability. Note   For strict liability, see section 6.1 of the Criminal Code.
117E       Other craft — adult cetaceans          (1)   This regulation applies:                 (a)    to a person who is operating a vessel that is not a prohibited vessel in the Marine Park; and                (b)    in relation to cetaceans other than calves. Note   Regulation 117F contains special provisions for calves.          (2)   Within the caution zone for a cetacean to which this regulation applies, the person must:                 (a)    operate the vessel at a constant slow speed and minimise noise; and                (b)    make sure the vessel does not drift or approach closer to the cetacean than:                           (i)    for a dolphin — 50 metres; or                          (ii)    for a whale — 100 metres; and                 (c)    if the cetacean shows signs of being disturbed, immediately withdraw the vessel from the caution zone at a constant slow speed; and                (d)    if there is more than 1 person on the vessel, post a lookout for cetaceans; and                 (e)    subject to paragraph (b), approach the cetacean only:                           (i)    from the rear, no closer than 30 degrees to its observed direction of travel; or                          (ii)    by positioning the vessel ahead of the cetacean at more than 30 degrees from its observed direction of travel; and                 (f)    make sure the vessel does not restrict the path of the cetacean; and                 (g)    make sure the vessel is not used to pursue the cetacean. Penalty:   50 penalty units. Note   If a cetacean approaches a vessel or comes within the limits mentioned in paragraph (2) (b), subregulations (4) and (5) apply.          (3)   The person must not enter the caution zone of a cetacean to whom this regulation applies if there are already 3 vessels in the caution zone. Penalty:   50 penalty units.          (4)   If a whale (other than a calf) approaches the vessel or comes within the limits mentioned in paragraph (2) (b), the person must:                 (a)    disengage the gears and let the whale approach; or                (b)    reduce the speed of the vessel and continue on a course away from the whale. Penalty:   50 penalty units.          (5)   If a dolphin (other than a calf) approaches the vessel or comes within the limits mentioned in paragraph (2) (b), the person must not change the course or speed of the vessel suddenly. Penalty:   50 penalty units.          (6)   It is a defence to an offence against paragraph (2) (b) that the cetacean has approached the vessel.          (7)   An offence under subregulation (2), (3), (4) or (5) is an offence of strict liability. Note   For strict liability, see section 6.1 of the Criminal Code.
117F       Other craft — calves          (1)   This regulation applies to a person who is operating a vessel that is not a prohibited vessel in the Marine Park.          (2)   The person must not allow the vessel to enter the caution zone of a calf. Penalty:   50 penalty units.          (3)   If a calf appears within an area that means the vessel is then within the caution zone of the calf, the person:                 (a)    must immediately stop the vessel; and                (b)    must:                           (i)    turn off the vessel’s engines; or                          (ii)    disengage the gears; or                          (iii)    withdraw the vessel from the caution zone at a constant slow speed. Penalty:   50 penalty units.          (4)   It is a defence to an offence against subregulation (2) that the calf has approached the vessel.          (5)   An offence under subregulation (2) or (3) is an offence of strict liability. Note   For strict liability, see section 6.1 of the Criminal Code.
117G      Aircraft          (1)   This regulation applies to a person who is operating an aircraft in the Marine Park.          (2)   The person:                 (a)    must not operate the aircraft (other than a helicopter or gyrocopter) at a height lower than 1 000 feet within a horizontal radius of 300 metres of a cetacean; and                (b)    must not operate a helicopter or gyrocopter at a height lower than 1650 feet or within a horizontal radius of 500 metres of a cetacean; and                 (c)    must not allow the aircraft to approach a cetacean from head on; and                (d)    if the aircraft can land on water, must not land the aircraft on water so that the aircraft comes within the radius of a cetacean mentioned in paragraph (b). Penalty:   50 penalty units.          (3)   An offence under subregulation (2) is an offence of strict liability. Note   For strict liability, see section 6.1 of the Criminal Code.
117H      Feeding          (1)   A person must not feed or attempt to feed a cetacean in the Marine Park. Penalty:   50 penalty units.          (2)   An offence under subregulation (1) is an offence of strict liability. Note   For strict liability, see section 6.1 of the Criminal Code.          (3)   Subregulation (1) does not apply to the routine discarding of bycatch by a commercial fisher if he or she makes reasonable efforts to avoid discarding bycatch near a cetacean.          (4)   For subregulation (1), feed includes to throw food or rubbish into the water near a cetacean.
117I        Touching and sudden movements          (1)   A person in the Marine Park must not:                 (a)    touch a cetacean; or                (b)    make sudden movements within 2 metres of a cetacean. Penalty:   50 penalty units.          (2)   An offence under subregulation (1) is an offence of strict liability. Note   For strict liability, see section 6.1 of the Criminal Code.
117J       Swimming with cetaceans          (1)   This regulation applies to a person who is entering the water, or in the water, in the Marine Park.          (2)   The person must not enter the water within 100 metres of a whale or within 50 metres of a dolphin. Penalty:   50 penalty units.          (3)   The person must not, while in the water, approach within 30 metres of a cetacean. Penalty:   50 penalty units.          (4)   If a cetacean comes within 30 metres of a person in the water, the person:                 (a)    must move slowly to avoid startling the cetacean; and                (b)    must not touch the cetacean or swim towards it. Penalty:   50 penalty units.          (5)   An offence under subregulation (3) or (4) is an offence of strict liability. Note   For strict liability, see section 6.1 of the Criminal Code.
117K      Exemption regarding application of this Part          (1)   If a person holds a relevant permission:                 (a)    to undertake research in relation to cetaceans; or                (b)    to undertake photography, filming or sound recording of cetaceans; or                 (c)    to conduct a tourist program that consists of a swimming-with-whales activity or a whale watching activity; or                (d)    to operate a vessel (other than a prohibited vessel) or aircraft in the Marine Park; the Authority may, on application under regulation 117L, give a written exemption from any or all of the provisions of this Part (other than regulation 117B) to:                 (e)    the person; or                 (f)    in the case of a person who holds a relevant permission to conduct a tourist program that consists of a swimming-with-whales activity or a whale watching activity — the person and any tourist undertaking the tourist program.          (2)   The exemption may provide that it only applies in the circumstances and subject to the conditions set out in the exemption.          (3)   The Authority may, by written notice to the holder of the exemption, vary, add or reduce the conditions attaching to an exemption.          (4)   The Authority may give an exemption under paragraph (1) (d) only in order to allow use of a vessel or aircraft in support of activities authorised by a relevant permission of a type mentioned in paragraph (1) (a), (b) or (c).          (5)   If an exemption is issued to the holder of a relevant permission to operate a vessel or aircraft in support of activities mentioned in paragraph (1) (a), (b) or (c), the exemption is only of effect while the vessel or aircraft is operating in support of those activities in the Marine Park.          (6)   An exemption given under this regulation:                 (a)    does not continue in force when the relevant permission to which it relates is not in force; and                (b)    is in force only for the period specified in the exemption; and                 (c)    if applying to a tourist (see paragraph (1) (f)), only applies to the tourist while the tourist is participating in the tourist program.          (7)   In this regulation, holder of an exemption means a person who:                 (a)    holds a relevant permission; and                (b)    is granted an exemption under subregulation (1).
117L       Application for exemption          (1)   An application to the Authority for an exemption under subregulation 117K (1) must be made by:                 (a)    the holder of the relevant permission; or                (b)    if a person has applied for a relevant permission of a kind mentioned in subregulation 117K (1) and the Authority has not made a decision on the application — the prospective holder.          (2)   The application must contain the following information:                 (a)    the name and address of the holder or prospective holder making the application;                (b)    contact details for the holder or prospective holder, including telephone number, facsimile number and e-mail address;                 (c)    the location of the area to be used by the holder or prospective holder for the permission activities, including the name of any shoal, reef or island on or near which the use is proposed to take place;                (d)    the period for which the exemption is sought;                 (e)    any other information concerning the application that the Authority requires and has asked the holder or prospective holder to provide.          (3)   If a vessel or aircraft is to be used in support of activities authorised by a relevant permission mentioned in paragraph 117K (1) (a), (b) or (c), the application must also contain:                 (a)    the name of the person who holds, or has applied to hold, the relevant permission to operate the vessel or aircraft; and                (b)    the permission number or (if no permission has been issued) the relevant permission application registration number.          (4)   If the application is for an exemption under paragraph 117K (1) (d), it must also contain the following information:                 (a)    if the holder or prospective holder has been engaged to operate the vessel or aircraft mentioned in the application on behalf of a person who has been granted a relevant permission mentioned in paragraph 117K (1) (a), (b) or (c) — the number of the relevant permission or, if no permission has been issued, the relevant permission application registration number and the name of the holder or prospective holder;                (b)    if the holder or prospective holder operates a vessel — the name of the vessel, unique identifying features of the vessel, its registration code or number and the authority with which it is registered;                 (c)    if the holder or prospective holder operates an aircraft — the type of aircraft and its registration mark.          (5)   Subject to paragraph (2) (e), an application under this regulation is not invalid only because it does not include all of the information required.          (6)   In considering an application for an exemption under regulation 117K, the Authority is to take into account:                 (a)    the need for orderly and proper management of the Marine Park; and                (b)    if the application is for an exemption under paragraph 117K (1) (d) — whether the applicant has been engaged to operate the vessel or aircraft mentioned in the application on behalf of a person who has been granted a relevant permission of the type mentioned in paragraph 117K (1) (a), (b) or (c); and                 (c)    any charge, collected amount or penalty amount owed to the Authority that is overdue for payment by the applicant as the holder of a chargeable permission (whether or not the permission is in force); and                (d)    any late payment penalty that is payable by the applicant as the holder of a chargeable permission (whether or not the permission is in force).
117M      Transitional arrangement — exemption under subregulation 117K (1)          (1)   If:                 (a)    on the commencement day, a person holds a relevant permission for a tourist program that consists of a swimming-with-whales or a whale watching activity; and                (b)    the person conducts the whale watching activity or the swimming-with-whales activity during the exemption period; the person, and any tourist undertaking that person’s tourist program, is taken to have an exemption under subregulation 117K (1) from subregulation 117J (2) for the exemption period.          (2)   In this regulation: commencement day means the day this regulation commences. exemption period means the period of 60 days starting on the commencement day. [4]           Paragraph 183 (1) (h) substitute                 (h)    a decision under subregulation 77 (3A) to impose a condition on, or vary an existing condition of, a relevant permission;                  (i)    a decision under subregulation 117K (1) on an application for an exemption from a provision, or provisions, of Part 4A. [5]           Paragraph 184 (1) (a) omit , (f) or (g) insert , (f), (g) or (i) [6]           After subregulation 185 (4) insert       (4A)   A person who applied for an exemption under subregulation 117K (1), and is dissatisfied with the decision of the Authority, may ask the Authority to reconsider the decision.
Note
1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.frli.gov.au.